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5. Key legal principles [20]

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While the courts have not set a clear formula or analytical approach for dealing with competing rights, they have provided some guidance. Where rights appear to be in conflict, Charter principles require decision-makers to try to “reconcile” both sets of rights. Although there are no “bright-line rules”[21] for dealing with competing rights claims, legal decisions have identified a number of fundamental principles that provide direction in how to deal with these types of scenarios, as well as what to avoid.[22] The courts have recognized that the specific facts will often determine the outcome of the case. Therefore many of the principles are abstract, and allow for some flexibility in approaching claims on a case-by-case basis. While many of these principles arose in the context of Charter litigation, they also provide guidance for other types of human rights conflicts:

  1. No rights are absolute
  2. There is no hierarchy of rights
  3. Rights may not extend as far as claimed
  4. The full context, facts and constitutional values at stake must be considered
  5. Must look at extent of interference (only actual burdens on rights trigger conflicts)
  6. The core of a right is more protected than its periphery
  7. Aim to respect the importance of both sets of rights
  8. Statutory defences may restrict rights of one group and give rights to another.

Organizations must consider these legal principles when they deal with competing rights situations.

5.1 No rights are absolute

A consistent principle in the case law is that no legal right is absolute, but is inherently limited by the rights and freedoms of others.[23] In R. v. Mills, Supreme Court of Canada Justice McLachlin (as she then was) and Supreme Court of Canada Justice Iacobucci stated:

At play in this appeal are three principles, which find their support in provisions of the Charter. These are full answer and defence, privacy, and equality. No single principle is absolute and capable of trumping the others; all must be defined in light of competing claims. As Lamer C.J. stated in Dagenais … “When the protected rights of two individuals come into conflict… Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.” This illustrates the importance of interpreting rights in a contextual manner - not because they are of intermittent importance but because they often inform, and are informed by, other similarly deserving rights or values at play in particular circumstances.[24]

Justice Iacobucci emphasizes this point in an article entitled “‘Reconciling Rights: The Supreme Court of Canada’s Approach to Competing Charter Rights,” when he states: “A particular Charter right must be defined in relation to other rights and with a view to the underlying context in which the apparent conflict arises.”[25]

Example: A person has a right to freedom of expression under the Charter, but they do not have a right to make child pornography.

In the context of freedom of belief or religion, the courts have found that the “freedom to hold beliefs is broader than the freedom to act upon them” where to do so would interfere with the rights of others.[26]

The Ontario Human Rights Code protects against discrimination on the basis of creed. But this protection does not extend to religious belief that incites hatred or violence against other individuals or groups, or to practices or observances that are said to have a religious basis, but which contravene the Criminal Code or international human rights principles.

Other examples include limiting the right to freedom of expression guaranteed by section 2(b) of the Charter where the expression could compromise a fair trial guaranteed by section 11(d) and section 7 of the Charter,[27] incite hatred as defined in the Criminal Code of Canada and some human rights legislation,[28] or result in discrimination against a minority group in our society.[29]

5.2 No hierarchy of rights

The Supreme Court of Canada has also been clear that there is no hierarchy of rights[30] — all rights are equally deserving and an approach that would place some rights over others must be avoided.[31] No right is inherently superior to another right.[32]

Example: In Dagenais v. Canadian Broadcasting Corporation, the Supreme Court of Canada was asked to order a publication ban. The ban would have prevented the CBC from airing a mini-series showing a fictional account of sexual and physical abuse at a Catholic boy’s school in Newfoundland during the trial of several members of a Catholic religious order. They were charged with physical and sexual abuse of young boys at schools in Ontario. The request for the publication ban required the court to balance the key constitutional rights of free expression (s. 2(b) of the Charter) and the right to a fair trial (s. 11(d)). Chief Justice Lamer stated:

A hierarchical approach to rights, which places some rights over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict … Charter principles require a balance to be achieved that fully respects the importance of both sets of rights.[33]

5.3 Rights may not extend as far as claimed

When faced with a competing right scenario, organizations must assess whether the rights extend as far as the parties claim. This validation process has two main components:

  1. Does the claim engage a genuine legal right?
  2. When the evidence is examined, can the individual with the claim bring
    himself or herself within the asserted right?[34]

The courts have suggested that for a competing rights scenario to arise at all, a legal right must first be found to exist.[35] When the facts and law are set out clearly, in context, not every rights claim will be found to be legally valid.

Human rights tribunals have considered and rejected several justifications for discriminatory conduct which could appear to be competing rights. For example, decision-makers have not accepted “customer preference” or “business or economic interests” as a valid competing right in cases involving discrimination contrary to human rights legislation.[36]

Example: Organizations and individuals objecting to breastfeeding in public have claimed a “right” to request that a woman cover herself, move to a private area, etc. This right has sometimes been articulated as a freedom of expression claim. At first glance, there appears to be a conflict between freedom of expression and freedom from discrimination based on sex. But a careful consideration tells a different story. Court and Tribunal decisions have clearly established a woman’s right to breastfeed in public.[37] These decisions have concluded that actions which prevent a woman from breastfeeding in public are discriminatory. These precedents mean that in the absence of a compelling, equally valid right (or a Code defence such as health and safety), a woman has an unqualified right to breastfeed in public. Freedom of expression is not a valid counter-claim because there is no established positive legal right to individual preference. In other words, you may have an opinion about a woman breastfeeding in public, but you cannot use your preference to stop an activity that is already recognized as an established equality right.

If the claim does engage a legal right, it is then necessary to consider whether on the facts of the case, the individual can bring him or herself within that right. Evidence may need to be called to prove that the claim falls within the parameters of the right unless the engagement of the right is clear from the circumstances.[38]

In the case of Grant v. Willcock, a refusal to sell property to a racialized person did not fall under the right to liberty guaranteed by section 7 of the Charter. A human rights tribunal (formerly the “Board of Inquiry”) found in the circumstances of the case that liberty rights did not extend to the liberty to discriminate based on a prohibited ground in the public sale of private property.[39]

5.4 Consider full context, facts and constitutional values 

5.4.1 Context and facts

Once the competing issues are identified and described, the rights must be defined in relation to one another by looking at the context in which the apparent conflict arises.[40] This approach is critical — the courts have repeatedly held that Charter rights and human rights do not exist in a vacuum and must be examined in context to settle conflicts between them.

Example: The Ontario Court of Appeal stated clearly in R. v. N.S.: “reconciling competing Charter values is necessarily fact-specific. Context is vital and context is variable.”[41]

Supreme Court of Canada Justice Frank Iacobucci expressed a similar view:

The key to rights reconciliation, in my view, lies in a fundamental appreciation for context. Charter rights are not defined in abstraction, but rather in the particular factual matrix in which they arise.[42]

Courts must be acutely sensitive to context, and approach the Charter analysis flexibly with a view to giving fullest possible expression to all the rights involved.[43]

Even slight variations in context may be critical in determining how to reconcile the rights. For example, in a situation that measures the right to freedom of expression against the impact of that expression on a vulnerable group, the precise tone, content and manner of delivery of the impugned message all have a significant impact on assessing its effect and the degree of constitutional protection it should be afforded. As noted by Justice Rosalie Abella in her dissenting judgement in Bou Malhab v. Diffusion Métromédia CMR Inc., “[T]here is a big difference between yelling “fire” in a crowded theatre and yelling “theatre” in a crowded fire station.”[44]

5.4.2 Underlying constitutional and societal values

As part of understanding the context, the constitutional and societal values at stake must be appreciated and understood.[45] This “scoping of rights” allows some rights conflicts to be resolved.

Several considerations come into play in scoping the rights. A contextual analysis will often involve weighing the underlying values of Canadian society incorporated in various legal instruments and case law. For example, as the Supreme Court of Canada stated in R. v. Oakes, a case that set out the test for determining whether an infringement of Charter rights can be justified in a free and democratic society:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.

The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[46]

The Preamble to the Ontario Human Rights Code, adapted from the Universal Declaration of Human Rights, also reflects societal values with respect to human rights and equality. To this end, four key principles emerge from the Preamble:

  1. recognizing the dignity and worth of every person
  2. providing equal rights and opportunities without discrimination tha is contrary to law
  3. creating a climate of understanding and mutual respect, so that
  4. each person feels a part of the community and able to contribute fully
  5. to the development and well-being of the community and the province.

Inherent in these values is a balancing[47] of individual and group rights. The Preamble describes relational rights where the equality of each individual exists alongside community development and well-being. These values are not seen as hierarchical; one establishes and gives meaning to the other. In other words, the equality of each individual is fostered by creating a climate of mutual respect. At the same time, the community is fostered through the recognition of the inherent dignity and worth of each individual. The Preamble makes clear that human rights legislation does not simply deal with violations of equality rights — it is also designed to foster an inclusive climate of mutual respect.[48]

International human rights law can also be an indicator of a society’s underlying values. By endorsing an international convention, for example, Canada has publicly stated its commitment to uphold the values the convention contains.[49]

There have been cases where a person’s objections to what they see as a violation of their rights have not been successful because their views are not consistent with society’s underlying values on human rights and equality. Decision-makers should apply a contextual analysis that considers constitutional values and societal interests including equality rights of women, negative stereotyping of minorities, access to justice and public confidence in the justice system.[50]

Example: Chamberlain v. Surrey School District No. 36[51] involved a challenge to a school board’s decision not to approve three books showing same-sex parented families as supplementary resources for use in teaching the family life curriculum. The Supreme Court of Canada noted that, while religious concerns of some parents could be considered, they could not be used to deny equal recognition and respect to other members of the community. The majority decision recognized the right to hold religious views, including the view that the practices of others are undesirable. But it emphasized that if a school is to function in an atmosphere of tolerance and respect, these views could not become the basis of school policy.

In Bruker v. Marcovitz[52], the Supreme Court of Canada dealt with the relationship between freedom of religion and gender equality rights. A domestic dispute arose out of a husband’s refusal to give his wife a religious divorce. The couple had signed an agreement to resolve their matrimonial disputes. The agreement included a term that the husband would give his wife a “get.[53] However, for more than 15 years the husband refused to honour his commitment and argued that a civil court could not enforce the agreement he signed without violating his religious rights. The majority of the judges of the Supreme Court of Canada disagreed. They found that the contract was a valid and binding obligation and that the husband was not protected from liability for breaching the agreement based on freedom of religion. In doing so, they suggested that the wife’s rights were a factor, and so too were fundamental values in Canadian society.[54] The judges noted that the husband had “little to put on the scales” both because he had freely entered into an agreement which he later claimed violated his rights, and because to allow him to back out of it would offend public policy:

The public interest in protecting equality rights, the dignity of Jewish women in their independent ability to divorce and remarry, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests and values that outweigh Mr. Marcovitz’s claim that enforcing [the agreement] would interfere with his religious freedom.

Not all competing rights decisions deal with discrimination issues directly. But many of the values underlying human rights protections — respect for human dignity, commitment to social justice and equality, accommodating a wide variety of beliefs and circumstances, protecting vulnerable persons and minority groups — are important when deciding how to reconcile or appropriately limit rights.

5.5 Look at extent of interference

When rights appear to be in conflict, a key consideration is to determine if there is an actual intrusion of one right on the other, and the extent of the interference. If the interference is minor or trivial, the right is not likely to receive much, if any, protection.

Example: In Syndicat Northcrest v. Amselem, a Jewish family was asked to remove a sukkah (a temporary hut placed on their balcony for religious celebration) because it did not comply with the condominium’s by-laws and was interfering with the neighbours’ enjoyment of their balcony. The Supreme Court refused to engage in a balancing process under section 1 of the Charter between freedom of religion as it affected the right to peaceful enjoyment and free disposition of property, since, in the Court’s view, the effect on the Jewish family was substantial while the effect on the co-owners was “at best, minimal,” and therefore limiting religious freedom could not be justified.[55]

Unless there is a substantial impact on other rights, there is no need to go further in the resolution process.

Example: Providing rainbow stickers (which show support for lesbian, gay, bisexual, transsexual, transgender, intersex, queer, questioning, 2-spirited and allied communities) to a teacher, who could choose to display the stickers or not, was found not to create any burden or disadvantage on religious rights.[56]

Recognizing the rights of one group (e.g. the legalization of same-sex marriage) cannot, in itself, violate the rights of another (e.g. religious groups that do not recognize the right of persons of the same sex to marry) unless there is an actual impact on the rights of another (e.g. religious officials being asked to perform same-sex marriages). In Reference re Same-Sex Marriage, the Supreme Court of Canada stated:

[T]he mere recognition of the equality rights of one group cannot, in itself, constitute a violation of the rights of another. The promotion of Charter rights and values enriches our society as a whole and the furtherance of those rights cannot undermine the very principles the Charter was meant to foster.[57]

Similarly, speculation that a rights violation may occur is not enough — there must be evidence, and not just an unsupported assumption, that the enjoyment of one right will have a harmful effect on another.

Example: Requiring teaching students in a religious teacher’s college to follow certain “community standards” prohibiting “homosexual activity” does not mean that graduates of the teaching program will discriminate against or show intolerance towards their students based on sexual orientation.[58]

5.6 Core of right more protected than periphery

If there is a substantial interference with the rights in question, the rights must be weighed or balanced; one right will give way to the other or both rights will be compromised. It appears from the law that one set of rights is more likely to be restricted when an action would be contrary to the “core,” or a fundamental aspect, of another individual’s rights. For example, the courts have said that requiring religious officials to perform same-sex marriages contrary to their religious beliefs[59] is different than allowing a person operating a business to refuse to offer his printing services to a same-sex organization on the basis that it violates his religious beliefs. In the latter case, the court noted that commercial enterprise is at the “periphery” of freedom of religion, and therefore, the religious rights had to give way to the right to be free from discrimination in services based on sexual orientation.[60]

The court stated:

The further the activity is from the core elements of the freedom, the more likelythe activity is to impact on others and the less deserving the activity is of protection. Service of the public in a commercial service must be considered at the periphery of activities protected by freedom of religion.[61]

The courts have consistently acknowledged that individuals are free to hold religious beliefs or express their opinions – but they have also made it clear that there are limits to how these beliefs and opinions may be acted upon where they may deny equal recognition and respect to other marginalized members of society. To this end, the private exercise of a right is generally given greater protection than the public exercise of a right.

Example: The rights to freedom of expression and religion have been limited where the inherent dignity and equality of individuals protected under human rights legislation is significantly engaged, such as where the writings of a teacher were found to have poisoned the educational environment for his Jewish students.[62]

For one right to prevail over another, the impact on the core of the right must be shown to be real and significant in the circumstances. Yet, even where this is found to be the case, there is still a duty to accommodate the yielding right as much as possible.

5.7 Respect importance of both sets of rights

Where rights appear to be in conflict, Charter principles require an approach that respects the importance of both sets of rights, as much as possible.[63] As noted in Supreme Court of Canada Justice Frank Iacobucci’s article, and as cited with approval by the Ontario Court of Appeal:[64]

…it is proper for courts to give the fullest possible expression to all relevant Charter rights, having regard to the broader factual context and to the other constitutional values at stake. [65]

However, potential compromises to both sets of rights, recently described as “constructive compromises” by the Ontario Court of Appeal, are part of the reconciliation process. These compromises “may minimize apparent conflicts … and produce a process in which both values can be adequately protected and respected.”[66] Searching for compromises involves exploring measures that may lessen any potential harm to each set of rights.

This process of looking for options to reconcile competing human rights resembles the analysis under section 1 of the Charter and the process that must be followed as part of the duty to accommodate under human rights law. Similarly, in cases such as Dagenais v. Canadian Broadcasting Corp.,[67] the Supreme Court directed courts considering a request for a publication ban to search for a “reasonably available and effective alternative measure” which would achieve the important objectives at stake.

When rights are in true conflict, some balancing may be required. One right may give way to another, or constructive compromises to both sets of rights may be found. In R. v. O’Connor,[68] a case involving a victim’s right to privacy in medical records and an accused person’s right to make full answer and defence, a balance was achieved by first providing the disputed records to the court to review.

There may be rare cases where reconciling the rights in question is not possible. For example, in R. v. N.S.,[69] the Ontario Court of Appeal acknowledged that while all rights are to be treated as equal at the outset, if there is no way to reconcile them, one right may be forced to give way to another. For example, when a conflict arises that truly harms an accused person’s Charter right to make full answer and defence, that right will prevail. The countervailing right will have to yield as our justice system has always held that the threat of convicting an innocent person strikes at the heart of the principles of fundamental justice.[70]

5.8 Defences found in legislation may restrict rights

Human rights laws and the Charter contain exceptions that allow differential treatment in certain circumstances. In many cases, these defences were put into legislation to recognize competing rights and may reflect law-makers’ efforts to reconcile a conflict between different rights.[71]

Often, statutory defences have been created to protect collective rights.[72] They typically deal with matters such as religious education, the ability of certain types of organizations serving the interests of a particular group to restrict their membership to persons who belong to that group; the ability to restrict access to certain facilities and shared housing by sex; and the rights of religious officials to refuse to conduct marriage ceremonies contrary to their religious beliefs. 

The Ontario Human Rights Code also includes provisions that appear to be attempts by the Legislature to reduce competing rights conflicts. The Preamble to the Code offers initial guidance for addressing conflicting rights by reflecting the values underlying the Code and human rights legislation in general. The Code also contains several exceptions that help to avoid situations where rights could potentially compete. The exceptions under the Code that most often emerge in competing rights cases are sections 13, 18, 18.1, 20(3), and 24. The eligibility criteria contained in each of these sections restricts to whom and in what circumstances these exceptions will apply.

For example, section 13 of the Code attempts to balance a prohibition on an announced intention to discriminate with the freedom of expression of opinion.

13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

(2) Subsection (1) shall not interfere with freedom of expression of opinion.

In recognition of the importance of freedom of expression as set out in this section, the OHRC intervened at the Human Rights Tribunal of Ontario in Whitely v. Osprey Media Publishing Inc. and Sun Media Corporation. The case involved an allegation that an editorial in The County Weekly News discriminated against people who have moved to Prince Edward County from elsewhere. The applicant alleged discrimination in services because of place of origin. The OHRC argued that section 13 of the Code does not restrict newspapers from printing opinions that some people may not like. In its decision, the Tribunal agreed, saying “…publication of opinion in the media is a matter at the core of freedom of expression and freedom of the press in a democratic society.”[73]

In another example, section 18 of the Code addresses “special interest organizations”:

The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.

This section applies only to services and facilities that are restricted based on membership or participation in an organization that primarily serves the interests of persons identified by a prohibited ground of discrimination (e.g. an Italian club for older persons). To qualify for an exception under this section, membership and participation

must be restricted to persons who are similarly identified with the primary service interests of the organization. Therefore, this provision accommodates religious freedoms by allowing religious institutions to grant preferences in their admission policies or membership based on religion.[74] The interpretation of this section in the case law balances freedom of association with equality rights. Like each of the other exception sections, this section considers the relationship between the private and public spheres. The public’s right to be treated without discrimination must be considered against a private organization’s right to limit its membership to an identified group.[75]

Section 1 is the primary site of internal balancing in the Charter. This section, also known as the “reasonable limits clause,” allows the government to limit an individual’s Charter rights. When the government has limited an individual's right, it has an onus to show, on a balance of probabilities, that the limitation was prescribed by law and is a reasonable limit in a free and democratic society. This is done by applying the “Oakes test.” Simply put, the Oakes test considers:

1. Whether there is a serious and important government objective

2. Whether the way the government is trying to reach that objective is proportional (i.e. reasonable and justified). This consideration determines whether:

(a)   the government's measures are carefully designed to reach the objective

(b)   the approach used impacts on the rights at issue as little as possible

(c)   the benefits from the government's measures outweigh the seriousness of the impact on the rights.[56]

In a competing rights situation, the Oakes test should be applied flexibly to find a balance between the infringed right and the right the state seeks to foster to justify the infringement. Once again, this requires close attention to the full context in the particular circumstances of the case before the court.

Example: The majority of the Supreme Court in B. (R.) v. Children’s Aid Society[57] found that the parents’ decision to refuse a potentially life-saving blood transfusion for their baby was protected by freedom of religion. Using a process under the Child Welfare Act, the child had been made a temporary ward of the Children’s Aid Society which had consented to the blood transfusion. However, despite the serious contravention of the parent’s section 2(a) rights, the infringement was justified under section 1 of the Charter. The state interest in protecting children at risk was balanced against the parents’ rights and found, in this case, to outweigh them.

Several things are clear when one reads the decisions that consider defences to discrimination in human rights statutes. First, unlike human rights defences that limit an individual’s right based on other interests (such as financial undue hardship),[58] defences that also recognize and promote the competing rights of other groups in society must not be interpreted overly narrowly. Second, despite this approach to interpretation, the defence has to be found to actually apply in the case at issue. Finally, this last point requires a full consideration of context based on the evidence in the circumstances of the case. In particular, the organization seeking to rely on the defence must be able to show, through objective evidence, the link between the actions that have a discriminatory impact on others and its enjoyment of its group right.

[20] The information in this section has been adapted from the OHRC publication, The Shadow of the Law: Surveying the Case Law Dealing with Competing Rights Claims, supra, note 7, which provides a more detailed discussion of the case law dealing with competing rights.

[21] R. v. N.S., 2010 ONCA 670 at para 97. Leave to appeal to the Supreme Court of Canada granted: 2011 Can LII 14361 (SCC). The appeal was heard by the Supreme Court on December 8, 2011.

[22] Examples of “what not to do” in a competing rights scenario include: (1) treating any right as
absolute; (2) regarding any rights as inherently superior to another; (3) accepting a hierarchy of rights; and (4) approaching rights in the abstract or in a factual vacuum.

[23] Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 at para.
29; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141 at 182; B. (R.) v. Children’s Aid Society of Metropolitan
, [1995] 1 S.C.R. 315 at para. 226.

[24] R. v. Mills, 1999 CanLII 637 (SCC) at para. 61.

[25] The Honourable Justice Frank Iacobucci, “’Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights,” Supreme Court Law Review (2003), 20 S.C.L.R. (2d) 137
at 139.

[26] Trinity Western, supra, note 23 at para. 29.

[27] Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.

[28] Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Keegstra, [1990]
3 S.C.R. 697.

[29] Ross, supra, note 12.

[30] Note that there may be a hierarchy of Charter vs. non-Charter rights and Code vs. non-Code rights. The Charter has primacy over all laws in Canada. As well, quasi-constitutional rights contained in human rights laws generally have primacy over non-constitutional legal rights (see for example s. 47(2) of the Ontario Human Rights Code, R.S.O. 1990, CHAPTER H. 19).

[31] Dagenais, supra note 27; Mills, supra, note 24 at para. 61.

[32] R. v. N.S., supra, note 21 para 48. See also Mills, ibid.; Dagenais, ibid. at 877; R. v. Crawford, [1995]
1 S.C.R. 858, at para. 34.

[33] Dagenais, ibid.

[34] For example, a claim that there is an interference with freedom of religion may not be found to be legitimate if, on the facts of the case and in the relevant context, the asserted religious belief is not found to be sincerely held. In Bothwell v. Ontario (Minister of Transportation), 2005 CanLII 1066 (ON S.C.D.C.), the Court considered all the evidence relating to the claimant’s objection to a digital driver’s licence photograph for religious reasons and found that the claimant did not meet his burden of establishing a sincerely held religious belief as set out in the Supreme Court decision in Amselem, supra, note 16. The Court was influenced, in part, by the fact that the claimant had raised a number of privacy, rather than religious, concerns and that his actions were not consistent with his asserted religious beliefs. Another example of failing to bring oneself within the right would be if asserting the right to free expression concerning activity that (a) does not convey or attempt to convey a meaning, and thus has no expressive content, or (b) that conveys a meaning but through a violent form of expression; see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.

[35] R. v. N.S., supra, note 21 at paras. 49 and 65.

[36] See for example: Giguere v. Popeye Restaurant, 2008 HRTO 2 (CanLII) citing a number of other human rights decisions. In Giguere, the Tribunal stated at para. 77: “Economic interests and rights
do not trump human rights, unless there is a specific exemption in the legislation.”

[37] See, for example, Quebec et Giguere v. Montreal (Ville) (2003) 47 C.H.R.R. D/67.

[38] In R. v. N.S., the court noted that unlike an accused person’s right to make full answer and defence
in a fair trial, a witness’ right to freedom of religion is not inherently triggered by taking part in the criminal justice process. A witness who seeks to exercise a religious practice while testifying must establish that the practice falls within the scope of the right to freedom of religion. That inquiry must almost inevitably involve testimony from the witness explaining the connection between the practice and his or her religious beliefs, although in most cases the inquiry would be relatively straightforward; R. v. N.S., supra note 21 at paras. 65-66. In a B.C. Human Rights Tribunal decision, the applicant was found not to have alleged facts “from which a nexus could be inferred” between the alleged adverse treatment she received and her religious beliefs. Therefore, there was insufficient evidence to establish that a religious right was engaged; Chiang v. Vancouver Board of Education, 2009 B.C.H.R.T. 319 at para 115.

[39] Grant v. Willcock (1990), 13 C.H.R.R. D/22 (Ont. Bd.Inq.).

[40] Mills, supra note 24; Trinity Western, supra note 23.

[41] R. v. N.S., supra note 21 at para. 97.

[42] Supra, note 25 at 141.

[43] Ibid. at 167.

[44] Bou Malhab v. Diffusion Métromédia CMR Inc., [2011] 1 S.C.R. 214 at para. 96.

[45] Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099-1101; MacKay v. Manitoba,
[1989] 2 S.C.R. 357 at 362-363, 366; Canadian Council of Churches v. Canada (Minister of
Employment and Immigration)
, [1992] 1 S.C.R. 236 at 253-255.

[46] R. v. Oakes, [1986] 1 S.C.R. 103. It is significant that these words very closely echo those that describe the values and principles underlying human rights as found in the preamble to the Ontario Human Rights Code and human rights statutes across the country.

[47] The term “balancing” has been used in a number of legal decisions involving competing rights: see,
for example, Ross, supra, note 12 at paras. 73 and 74.

[48] For a more detailed discussion on this point, see Ontario Human Rights Commission, “Balancing Conflicting Rights: Towards an Analytical Framework,” (2005) at 7; available at:

[49] For a more detailed discussion, see Sebastian Poulter, “Ethnic Minority Customs, English Law
and Human Rights,” (1987) 36 International and Comparative Law Quarterly, 589 at 596.

[50] See R. v. N.S., supra, note 21.

[51] Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710.

[52] Bruker v. Marcovitz, [2007] 3 S.C.R. 607.

[53] A get is a Jewish divorce that would release a wife from marriage and allow her to remarry within the faith. Only a husband can give a get and there is no other process within the Jewish faith for releasing
a wife from the marriage.

[54] The majority of the Court noted that while courts would be reluctant to interfere in “strictly spiritual or doctrinal” religious matters, they will intervene when property or civil rights are engaged. They went on to question the husband’s religious rights claim, stating they were having “difficulty discerning” how requiring him to comply with his agreement to give a get could conflict with a sincerely held religious belief and have non-trivial consequences for him. However, even if he could establish this, his claim of a religious right had to be balanced against competing values or harm that would result. The OHRC’s Policy on Creed and the Accommodation of Religious Observances also recognizes limits on religious freedom and states at page 5 that it “does not extend to religions that incite hatred or violence against other individuals or groups, or to practices or observances that purport to have a religious basis but which contravene international human rights standards or criminal law.” The Policy refers to female genital mutilation as a violation of human rights that is not protected on the ground of creed. The OHRC’s Policy on Creed and the Accommodation of Religious Observances is available at:

[55] Amselem, supra, note 16 at paras. 57 and 60.

[56] Chiang, supra note 38 at para 36.

[57]Reference re Same-Sex Marriage, 2004 SCC 79 at para. 46. In S.L. v. Commission scolaire des Chênes, 2012 SCC 7, the Supreme Court of Canada dismissed a challenge under s. 2(a) of the Canadian Charter of Rights and Freedoms by parents who argued that a mandatory course on ethics and religion would interfere with their ability to pass on their Catholic faith to their children. The Court found that a person must prove, through objective evidence, that there is an interference with a religious right. While the parents sincerely believed that they had an obligation to pass on the precepts of their religion to their children, they did not objectively demonstrate that their ability to do so had been interfered with. The Supreme Court also stated that children’s exposure to views that are different than what they have been taught by their families does not in itself violate religious rights (at para. 40).

[58] Trinity Western, supra note 23.

[59] Reference re Same-Sex Marriage, supra, note 57.

[60] In Brockie v. Brillinger (No. 2), (2002), 43 C.H.R.R. D/90 (Ont. Sup.Ct.), the Divisional Court noted that Mr. Brockie’s exercise of his right to freedom of religion in the commercial marketplace is, at best, at the fringes of the right. Therefore, limits on his right to freedom of religion were found to be justified where it would cause harm to others, namely by infringing their Code right to be free from discrimination based on sexual orientation. The court left open the possibility that a different conclusion could be reached if the material being printed contained material that “might reasonably be held to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs.” (at para. 56)

[61] Brockie v. Brillinger (No. 2), ibid. at para. 51.

[62] Ross, supra note 12.

[63] Trinity Western, supra, note 23 at para. 31; Dagenais, supra, note 27 at p. 877.

[464] R. v. N.S., supra, note 21 at para. 47.

[65] Supra, note 25 at 140.

[66] R. v. N.S., supra, note 21 at para. 84.

[67] Dagenais, supra, note 27.

[68] O’Connor, supra, note 19.

[69] R. v. N.S., supra, note 21. The Supreme Court of Canada has granted leave to appeal the decision
of the Ontario Court of Appeal. It will, therefore, soon have the opportunity to comment on or revise the approach to the competing rights at issue.

[70] R. v. N.S., ibid. at paras. 88-89; Mills, supra, note 24 at para. 89.

[71] Legislators are often in a good position to address the potential for rights to compete. As opposed to decision-makers, legislators have the ability to proactively address conflicts before they occur by drafting legislative language that can prevent conflicts from occurring in the first place. However, as one author notes, “Opting for the legislature as a preferential forum for dealing with conflicts of human rights may restrict the scope of the problem for the courts, but will not exclude it. There will always be cases in which the legislator does not foresee the negative implications that a rule protecting one right may have on another right”: see Eva Brems, “Conflicting Human Rights: An Exploration in the Context of the Right to
a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms,” Human Rights Quarterly 27 (2005) 294 at 305.

[72] See Caldwell v. Stewart, [1984] 2 S.C.R. 603.

[73] Whiteley v. Osprey Media Publishing, 2010 HRTO 2152 (CanLII).

[74] For example, under section 18, a private Christian post-secondary school can restrict its admissions
to students who agree that “homosexuality” is a sin and undertake to refrain from “homosexual” practices.

[75] Martinie v. Italian Society of Port Arthur (1995), 24 C.H.R.R. D/169 (Ont. Bd. Of Inquiry). Note, this section could also apply to other organizations; for example, women’s groups, ethnic organizations, etc.

[76] The exact language for the test as set out in R. v. Oakes, supra, note 46 at para. 70 is:

  1. There must be a pressing and substantial objective
  2. The means to achieve that objective must be proportional
    1. The means must be rationally connected to the objective
    2. There must be minimal impairment of rights
    3. There must be proportionality between the infringement and objective

[77] B. (R.), supra, note 23.

[78] Section 17(2) of the Code prescribes three considerations in assessing whether an accommodation would cause undue hardship. These are: cost, outside sources of funding, if any, and health and safety requirements, if any. 


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